Title: Flowserve BW/IPP and IUE Local 628
hearing in this matter was held in Williamsport, Pennsylvania, on 4/21/99.
The spokesperson for the Flowserve - BW/IP (hereinafter
"Company") was attorney Gordon Jackson.
The spokesperson for the IUE Local 628 (hereinafter "Union")
was attorney Irwin Aronson. The
witnesses for the Company were supervisor Tim Satterfield, manufacturing manager
Jeff Wingate, and human resources director Harvey Geib.
The witnesses for the Union were the grievant, Daniel McCourt, and chief
steward Dave Schneider. The joint
exhibits were the collective bargaining agreement (J-1) and the grievance packet
(J-2). The Company 's 22 exhibits
included its reward notice (C-1), the 6/5/97 verbal warning (C-3), the 9/11/97
written warning (C-4), the 11/13/98 termination letter (C-5), supervisor Wolfe's
5/26/93 (C-7) 4/26/93 (C-10) file notes, the employee code of conduct (C-9), and
the human resource director's 4/26/93 (C-11) and 5/26/93 (Co. 16) file notes.
The Union 5 exhibits included certifications of reliability and
trustworthiness (U-1 thru U-3) and a
1/12/92 letter of commendation (U-4). With
the parties' mutually agreement to use oral closing arguments rather than
posthearing briefs, the hearing closed on 4/21/99.
Company is the current owner of a plant that produces high quality nuclear power
industry valves. The previous owner
was Anchor Darling Valve. Upon acquiring the assets on or about January 1997, the
Company hired all of the active employees.
The records (e.g., personnel files), responsibilities, pension-vesting,
and seniority remained the same.
Union has represented the employee since 1949.
The current size of the unit is approximately 70 employees.
Darling Valve hired Daniel McCourt in 1959.
After the initial seven years in the foundry, he became a welder for the
duration of his employment.
the early 1990s, the welding department, which consisted of the McCourt,
approximately seven other employees, and supervisor Tom Wolfe, was beset by poor
morale and low productivity.
The atmosphere had war-like
aspects. Some of the welding
department employees wore symbolic headbands.
On 1/23/93, when Wolfe required an employee to remove a T-shirt that
displayed derogatory comments about Anchor Valve, McCourt reportedly threatened
Wolfe not to turn his back toward him. That
night, someone shot out the pole light at manufacturing manager Wingate's house
and shot into automobiles at Wolfe's house.
On 1/24/93, Anchor Valve posted a $5,000 reward.
In response, unidentified employees posted threats of more violence.
Safety problems were also manifest
in the welding department.
who was a Union official for much of this period, continued to be
confrontational. On 4/26/93, in response to a parking directive, he
intemperately and separately threatened Wolfe and human relation director Harvey
Similarly, on 5/26/93, when he
found out that Anchor Valve had installed hidden surveillance cameras in an
effort to find out who was responsible for sabotage of its property, McCourt
expressed a veiled threat of retaliation to Geib.
Later the same day he
confronted Wingate; charged him with breaking the "truce"; and
guaranteed that if the Company immediately removed the cameras "nothing
will happen" and if not, "something will happen."
the end of May 1993, Anchor Valve terminated Wolfe for lack of control and
efficiency. After a new supervisor
quit after less than three months, Wingate assumed the responsibility, and the
situation started to improve.
1/1/95, Wingate assigned the supervisory duties to welding engineer Tim
Satterfield. Morale, safety, and
productivity continued to improve.
6/5/97, after the Company acquired the assets and hired the active employees,
Satterfield, per a progressive discipline policy,
issued an oral warning to McCourt and another welding employee for being out of
their work area. On 9/11/97, Satterfield issued a written reprimand to McCourt
for again being out of his work area; the notice warned that for "[t]he
next offense you will be given 3 days off without pay."
the next day, observing that Fisher
and McCourt were failing to heed his counseling, he went to Geib to recommend
the third step,
which is a three-day suspension for each of them.
After Geib checked their files and concurred, Satterfield met first with
Fisher in the presence of Union chief steward to notify him of his suspension.
When Fisher responded that he was not the only one who had been
unproductive, Satterfield said that he was going to also address that situation.
Upon learning through the grapevine that he was next, McCourt confronted
Satterfield at close range, exclaiming: "You better never threaten me, and
don't ever turn your back on me or I'm going to get you; a war has
started." Satterfield escorted
McCourt to Geib's office
and recommended termination. Geib,
who was on his way to the airport for a business trip, met with McCourt in
presence of the chief steward and, after hearing his side of the story,
The Union immediately filed a
grievance. After leaving for the
airport, Geib called Satterfield and instructed him to interview the two
employees who had been in the immediate area of his tete-a-tete with McCourt.
Satterfield did so, but they said that they did not see or hear anything
and were unwilling to testify for either side.
11/16/98, the Company officials met with the Union representatives for the third
step of the grievance process and denied the grievance,
and the matter proceeded to the instant arbitration.
Except as expressly stated by the specific provisions of this Agreement, the
Company is vested exclusively with the management of its business, including,
but not limited to, ... the right to ... discipline or relieve employees from
duty ... for ... legitimate reasons.
- GRIEVANCE PROCEDURE
In the case of a discharge, the discharged employee may confer with the
Chief Steward before he leaves the plant by going to the Human Resources
Department and stating his desire.... If
a grievance should develop over the discharge, it should start at Step III.
not satisfactory settled at such meeting, a grievance shall be submitted to
arbitration ... under Step IV and the Arbitrator shall have the power to
determine whether or not such employee is to be reinstated; and if so, the
amount of back pay, if any, to which he is entitled.
If such employee is reinstated, he shall be entitled to his full
the Company grievant was discharged for just cause?
If not, what shall the remedy be?
case is largely a matter of fact finding, based in notable part on the
credibility of the witnesses. When the Company's prompt investigation of the matter, and
the Union's diligent follow-up, revealed that no other employee was able, or at
least willing, to testify about the 11/11/98 confrontation between the grievant
and his supervisor, the case would appear to be one participant's word against
the other. However, this
characterization, which the grievant asserted at the Step III meeting,
is not correct for more than one significant reason.
there was no disagreement between the two versions that the grievant initiated
the confrontation based on what he perceived as Satterfield threatening him at
the meeting with co-worker Fisher. An objective assessment of the facts, in terms of
preponderance of the evidence, reveals that the grievant had no reason to
believe that the supervisor threatened him.
At the Step III meeting, the Company twice made the point that the
grievant was not specifically mentioned in the Satterfield-Fisher meeting.
The Union did not present any rebuttal at that meeting or, more
importantly, at the arbitration hearing. Rather,
the evidence in this case is preponderant that in response to Fisher's query,
Satterfield promised to be evenhanded in terms of addressing any other
employee's similar problematic conduct. The
grievant could only reasonably conclude, based on a "heads-up" from
the stewards, that he would be next in terms of likely discipline.
Considering that as a "threat," and thereby initiating a
confrontation that resulted in one or more other threats, was clearly not
reasonable on the grievant's part.
in contrast with Satterfield's previous conduct, the grievant has engaged in a
pattern of intemperate confrontations. Without
attributing any of the sabotage and violence to the grievant, the balance of the
evidence reveals that the grievant was specifically responsible for veiled or
unveiled threats on 1/23/93 to his former supervisor; on 4/26/93 to his former
supervisor and the human relations director, separately; and on 5/26/93 to the
human relations director and the manufacturing manager, separately.
Although these confrontations were part of a period of hostility and
unproductivity and, thus, arguably just blowing off steam, they reveal the
grievant's individual propensity.
the grievant undermines his own testimony by conveniently forgetting most of
these previous actions and understating the meaning of the little he professed
to remember. For example, his testimony that "whatever" in the
context of his threat to Geib
referred to the grievance process is clearly contradicted by the immediate
circumstances and his accompanying words. The
customary certifications of reliability required by the Company's customer do
not repair the damage that the grievant did to his own case.
in the more immediate context, Satterfield had exhibited unrequired patience by
counseling the grievant and a co-worker, in the face of blatant "screwing
off" on the previous day, rather than resorting to the general structure of
the Company's progressive discipline policy.
In contrast, the grievant -- and his co-worker -- engaged in the very
same behavior on 11/11/98, thus compounding the reasons for discipline
and adding to the pattern of confrontation.
by declaring "war," whether in response to the supervisor's invitation
or on his own initiative, the grievant would be reasonably understood to be
threatening a return to the previous period of blatant unproductivity, which
threatened the survival, much less success of the Company
as well as the safety of its staff.
The Union's guilt-by-association argument doesn't wash in this case; even
if one were to assume that the grievant did not directly participate in the
previous violence, he effectively admitted an indirect connection,
and, in any event, allowing his repeated defiance of the supervisor's directives
and authority could lead to a return to the former situation.
score in this case is certainly not a "shutout."
First, the Company's progressive discipline policy is far from optimal in
its clarity; its large ad hoc component subjects its enforcement to
careful scrutiny. Had McCourt
waited for his discipline and challenged it through the grievance process, he
may have had a good argument if he received the same discipline as co-worker
Fisher in light of the dates of their respective prior oral and written
warnings. A fortiori
discharge would not have been a defensible decision, had the grievant not
brought it on himself by subverting and compounding the process.
the grievant's long and relatively clean disciplinary record might have provided
sufficient mitigation had it not been for the cumulative evidence of his
repeated stepping over the line. Arguably
the Company should have acted sooner and more strictly, but it did set an
example by terminating his previous supervisor and by issuing ample warnings to
the grievant via his present supervisor. By
directly defying said supervisor's counseling and intemperately interfering with
his subsequent disciplinary action, the grievant effectively asked for
ultimately got. Although the
Company could have exercised leniency in terms of a less severe penalty,
termination was within the range of its reasonable discretion in this case.
the Company's termination decision was arguably precipitous.
In 20-20 hindsight, suspending the grievant pending further investigation
would have been the appropriate step, especially given the scheduled flight of
the human relations director. Nevertheless,
the investigation was prompt, and the Step III meeting soon thereafter afforded
both the grievant and the Union to present any further evidence and arguments. Thus, any initial error was not prejudicial.
the arbitrator does not find the Company's takeover status at all determinative
in this case. The triggering events, which were the various grievant's
various disciplinary incidents starting on 6/5/97, were all after the Company
acquired the assets of Anchor Valve. The
tumultuous times in the welding department in the 1990s, whether considered
separate or not, were, like the grievant's previous service, relevant
a careful review of the evidence and arguments in this case reveal that the
balance weighs in favor of denying the grievance.
The Company had just cause for its discharge decision.
 McCourt testified that the handkerchief-headbands were merely due to the heat, but, given the lack of evidence of such headbands being worn in more recent summers and the overwhelming evidence, including his acknowledgment ,that the welding employees were, in effect, at war with the Company at the time, his characterization is not credible. In any event, this finding is only incidental to the more specific evidence relevant to the issue in this case.
For example, on 2/18/93, an
outside contractor insisted on extra charges so as to install a welding
exhaust systems on the weekend so as to avoid doing the work in proximity of
the welding department employees (C-5).
 According to their contemporaneous notes, when he learned that Geib was the source of the directive, McCourt went to Geib's office, grabbed the directive off his desk, and exclaimed: "This is going to cost you!" Highly agitated, he returned to the welding department and reportedly shouted at Wolfe: "You're going to pay for this." (C-10).
 According to Geib's contemporaneous notes, he said: "I have no scruples, ... I don't care about anything. I just get even. When you do something to me, I do something to you? I don't care if it is here, at your house, your family -- whatever!" (C-16).
 The policy provides that "[i]f a violation occurs, disciplinary action will be taken, including: (a) warning (b) written reprimand (c) suspension or (d) discharge, depending upon the rule and circumstances involved." The specified violations included "13. Threatening ... fellow employees on Company premises," "15. Interfering with plant efficiency," "24. Insubordination," and "25. Failure to comply with Supervisor's ... work-related order" (C-9).
 Geib was responsible for the third and fourth steps of the discipline policy. According to him, the earlier steps did not apply for offenses generally understood in the industry as dischargeable, such as punching a supervisor.
 As confirmed in his notes written soon afterward, McCourt denied threatening Satterfield and contended instead that Satterfield lost his temper, shouted the "f---ing" references at him, and challenged him to start a war (U-5).
The written confirmation of
the termination, which was handwritten that day but not typed until
11/13/98, specified the reason as "violation of Employee Conduct Rule
#13, Threatening his Supervisor" (C-5).
 Although the Company's representative was the scrivener of the Step III meeting minutes, there would not appear to be any dispute that the grievant asked why the Company accepted the supervisor's, rather than his, version of what had happened between them (C-17).
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